Macdonald v Wyllie & Son
| Jurisdiction | Scotland |
| Judgment Date | 22 December 1898 |
| Date | 22 December 1898 |
| Docket Number | No. 56. |
| Court | Court of Session |
Lord Young, Lord Trayner, Lord Moncreiff, Lord Justice-Clerk.
Reparation—Master and Servant—Defective Plant supplied by Contractor.—
A firm of builders having a contract to take down certain high walls contracted with a firm of joiners for the erection of a scaffold. The scaffold, after it had been taken over by the builders, collapsed. A workman in the employment of the builders, who had been injured by the fall of the scaffold, brought an action against his employers for damages on account of the injuries sustained by him. At the trial of the cause it was ultimately not disputed that the fall of the scaffold was due to a defect which might have been discovered by any skilled person inspecting it. The Lord Justice-Clerk directed the jury as follows:—‘That if the jury are satisfied that the defender, not having the knowledge and skill to erect the scaffolding in question, selected a tradesman having skill and experience of such work, and contracted with him to provide such a scaffold, he would not be liable as for fault if the scaffolding fell in consequence of its being erected in an unskilful manner through the fault of the skilled person who contracted to erect it.’ The jury returned a verdict for the defenders. Held, upon a bill of exceptions, that this direction was erroneous in law. Exception allowed and new trial granted.
Expenses—Jury Trial—Bill of Exceptions—New Trial—Expenses of First Trial and of Bill of Exceptions.—
Held (diss. Lord Young) that when a new trial is granted either on a motion for a new trial or on a bill of exceptions, the general rule is to reserve the expenses of the former trial; and that the same rule applies to the expenses of the bill of exceptions itself.
Gibson v. Nimmo & CompanySC, March 15, 1895, 22 R. 491, commented on.
In March 1898, John Macdonald, labourer, Ayr, brought an action in the Sheriff Court at Ayr against Andrew Wyllie & Son, builders and contractors, Ayr, and George Wyllie, the only known partner of that firm, for damages, alternatively at common law, and under the Employers Liability Act, 1880, on account of injuries sustained by him while working in the defenders' employment, through the collapse of a scaffold.
In December 1897, the defenders were engaged upon a contract for taking down the walls of Ayr Town Hall, which had been destroyed by fire. The walls were in some places sixty feet high, and scaffolding had to be erected to the wall head to enable the walls to be taken down. On 14th December the erection of the scaffolding was completed. On that day the pursuer was ordered by the defenders to work on the scaffolding at the taking down of the wall. While he was so working the scaffolding collapsed, and he sustained the injuries on account of which he sued.
The pursuer averred that the scaffolding was defective in several particulars which he specified. ‘The said defects were patent to anyone acquainted with scaffolding making an examination of the scaffold, and would have been discovered had any reasonably careful inspection been made. The defender, Mr George Wyllie, was taking charge of the operations, including the erection of said scaffold, and he is a builder of considerable experience and well acquainted with the erection and use of scaffolding. Had he inspected the scaffold in question with reasonable care before it was used, as he was bound to do, he could not have failed to discover the said defects.’
The defenders denied that the scaffolding was defective, and alternatively, they averred that if it was defective the defects were latent. They also averred ‘that the erection of high scaffolding, such as was required in connection with the demolition of the walls, is proper joiners' work, and not such work as is usually executed by builders. Accordingly defenders, after consultation with the burgh surveyor, contracted for the erection of all the scaffolding required with Messrs W. & G. Fergusson, knowing, as was the fact, that they were joiners in good repute, and had had large experience in the erection of high scaffolds. Defenders entrusted the matter entirely to the Messrs Fergusson, who duly erected the scaffolds and represented the same to be, as they in fact were, or seemed to be, safe and sufficient for the work. Denied that Mr George Wyllie personally superintended the work of erection of, and was responsible for, the sufficiency of the scaffolding.’
The defenders pleaded, inter alia;—(1) All parties not called. (5) The pursuer not having been injured through the fault of the defenders, or of anyone for whom the defenders are responsible, is not entitled to decree.
The case, having been appealed for jury trial, was on 17th October 1898 tried before the Lord Justice-Clerk and a jury upon the following issue:—‘Whether, on or about the 14th day of December 1897, and at or near the Town Hall in Ayr, the pursuer, while in the employment of the defenders, was injured in his person through the fault of the defenders to the loss, injury, and damage of the pursuer? Damages laid at £1000. Or, alternatively, under the Employers Liability Act, at £195.’
In his charge the Lord Justice-Clerk directed the jury as follows: ‘That if the jury are satisfied that the defender not having the knowledge and skill to erect the scaffolding in question, selected a tradesman having skill and experience of such work, and contracted with him to provide such a scaffold, he would not be liable as for fault if the scaffolding fell in consequence of its being erected in an unskilful manner through the fault of the skilled person who contracted to erect it.’
Hunter, for the pursuer, excepted to the above ruling, and asked the Lord Justice-Clerk to give the following directions to the jury:—
‘(1) That the defenders are liable for the scaffolding used by their employees, unless it was reasonably sufficient for the purpose for which it was being used, and that employment of competent joiners to erect such scaffolding does not free them from responsibility to their workmen, if the scaffold fell in consequence of its being erected in an unskilful manner.
‘(2) That the defenders are liable if they took over the scaffolding under circumstances indicating that Messrs Fergusson had not inspected the scaffolding.’
The Lord Justice-Clerk refused to give these directions. Whereupon counsel for the pursuer excepted to the ruling and the refusal.
The jury unanimously found for the defenders.
A bill of exceptions was then presented.
At the hearing, counsel for the defenders stated that, for the purposes of the discussion on the bill of exceptions, they admitted that the scaffolding in question was defective, and further, that its defects were not latent defects to anyone skilled in the erection of such scaffolding.
Argued for the pursuer;—A master was bound to see that the tools and other appliances which he provided for his workmen were safe. It was immaterial whether he made the tools or appliances himself, or procured them from other people; in either case he was in fault if they were defective, and was liable in damages to any of his workmen who were injured in consequence of the defect.1 It might be that if the defect was a latent defect the master would not be liable. No such case occurred here, for it was admitted that the defect was not a latent defect, and the direction was a perfectly general one to the effect that the defenders were not liable because they had employed a competent joiner to erect the scaffold; no question was raised by the direction as to whether the defenders had or had not used reasonable precautions. The rule was a general one, that where a person owed a duty to another, he could not free himself from the performance of that duty, and the consequent liability for the neglect of it, by contracting with someone else for the performance of the duty. In such a case the negligence of the contractor was the negligence of the person who had employed him. The employer was not, indeed, liable for what had been called the casual or collateral negligence of the contractor. If for example the joiners here, in building the scaffold, had let a plank of wood fall and injure someone, the defenders would not have been liable for that; but they were liable to their servants for the sufficiency of the scaffold after it had been erected.2 If the defenders
were not liable to the pursuer, then the pursuer had no remedy, for he had no right of action against the joiners, who had not contracted with him and who were under no duty towards him.1 In Heaven v. PenderELRELRELRELRELR2 on which the defenders founded on this point, the harbour authorities were held liable, to persons using a scaffold supplied by them, for the sufficiency of the scaffold on the ground that it was part of the harbour appliances.3 The directions for which the pursuer asked were sound, and ought to have been given.
Argued for the defenders;—A master did not warrant or insure to his servants the safety of his plant. To infer his liability to them, fault must be proved against him, as the issue shewed; and he would be in fault only if he neglected some reasonable precaution to secure the safety of his plant.4 There was here no question under the Employers Liability Act; the defenders, if in fault at all, were in fault on account of their own personal negligence. The pursuer appeared to admit that they would not be liable for latent defects, which was tantamount to admitting that the question was not as to insuring the safety of plant, but as to the neglect of reasonable precautions. It was true that the defenders admitted that the defects here were not latent,—that was to say, not latent to anyone skilled in the erection of scaffolding. But the defenders, as the direction assumed, were not thus skilled, and therefore any inspection by them personally would probably have been of little use, and their neglect to inspect...
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